WEST VIRGINIA DIVORCE BASICS AND OVERVIEW
|This is a reference guide about filing for divorce in West Virginia. Each state has its own requirements, laws, and documentation, so we decided to gather it all in one location to make it easy and quick for you to find the information you need before, during and after your divorce.|
- Time Frame: A hearing to finalize the divorce must be held no sooner than 20 days and no later than 220 days from the filing of the divorce papers.
- Where to File: Circuit Court. "Circuit court of __________ County, West Virginia."
- State Statutes: West Virginia Code; Section 48.
- Name of Action: Petition for Divorce.
- Name of Parties: Petitioner, the spouse who files, and respondent, the other spouse.
- No-Fault or Fault and No-Fault Only: Both no-fault and fault offered.
- Primary Documents Filed: Petition for Divorce and Decree of Divorce.
- Physical Separation Required: Yes.
- Separation Time to File: For no-fault, one year.
- Legal Separation Permitted: The grounds for separate maintenance are the same as for divorce.
- Grounds: No-Fault, which means living separate and apart in separate places without any cohabitation and without interruption for one year; or Irreconcilable differences between the two parties; and Fault, which includes reasonable apprehension of bodily harm; false accusation of adultery or homosexuality; or conduct or treatment which destroys or tends to destroy the mental or physical well-being, happiness and welfare of the other and render continued cohabitation unsafe or unendurable; adultery; felony conviction; permanent and Incurable Insanity; habitual drunkenness or drug use; or willful neglect or abuse of spouse or child.
- Residency Requirement: At least one of the spouses must have been a resident of the state of West Virginia for at least one year prior to filing, unless the couple married in West Virginia, in which case the one year residency requirement is waived.
- Mediation Required: The judge decides issues left unresolved between the parties after a mediation session has been conducted (or after several mediation sessions, if the parties agree to more). The fee for the mediator in these sessions is paid by the state.
- Counseling Required: There is no mandatory divorce counseling in West Virginia.
- Parenting Classes Required: If a divorce involves a minor child, the West Virginia court orders the parents to attend an education class, so they understand the effects that divorce and custody disputes have on minor children. This is required in an effort to reduce the trauma to the child who experiences divorce. The session is mandatory for divorcing parents, but the court may waive parent education requirement if the judge finds that attendance is not necessary or beneficial to the parents and/or children. The family code statute is regarding the parenting class requirement is West Virginia 48-9-104.
- Filing Fee: $135-$185. (See WV Filing Fee Waiver Form)
- Where to File for Child Support: Bureau for Child Support Enforcement.
- Child Support Guidelines Model: Income share model using the income of each parent and applies that percentage to the the monthly support amount to calculate the obligation of each parent.
Following an income shares method, West Virginia calculates child support based upon a percentage of the combined gross income of both parents, which after allowing appropriate deductions surrenders an adjusted gross income. Both parents are responsible for child support, according to W. VA Code §48-11-101 et seq. The child support order covers food, shelter, clothing, education, and health and child care as well as extraordinary work related child care expenses, medical, and other expenses. Support ends when the child turns 18 so long as the child is unmarried and residing with a parent, guardian or custodian but may be extended for up to 20 years of age if the child attends college or a vocational program and does continue indefinitely when physical or mental disability prevents him or her from self-support. Parents often agree to an amount that is different from the West Virginia state guidelines. In this situation the parents must prove to the court that the different amount is a better fit for their situation and the child will be appropriately supported financially.
- Property Division: An equitable distribution state, West Virginia uses dual classification.
- Appreciation of Separate Property: The appreciation of separate property is considered separate in West Virginia.
- Attendance at Hearing: Yes.
- Fault Considered in Property Division: No.
- Waiting Period After Divorce for Remarriage: None.
- Ways to Serve Spouse: West Virginia offers a wide range of service options, including personal service, certified mail service, sheriff's service, service by publication, or pick up at the clerk's office. Often the respondent waives service by signing an acknowledgement and acceptance of service, especially in an uncontested divorce.
- Divorce Records: The West Virginia Division of Vital Statistics.
When filing a West Virginia divorce, the petitioner must complete a Vital Statistics form (SCA-FC-104), which provides information requested by the Division of Vital Statistics to properly record the divorce with the state. The West Virginia Divorce index maintained by the West Virginia Department of Health and Human Resources has on file divorces in the state since 1967. These divorce records are available through proper requesting procedures (mail or in person), but certified copies of a divorce record are not available from the state office. The address of the state office is Vital Registration Office, 350 Capitol Street Room 165 Charleston, West Virginia 25301-3701. Certified copies of divorce records or orders (a copy of the actual Decree of Divorce) may be obtained from the Clerk of the Circuit Court in the county where the divorce was filed and granted.